The wheels of government turn slowly, as AVN Online discovered late last week when the U.S. Department of Justice responded to two Freedom of Information Act requests from the magazine more than one year after they were submitted.
And when the wheels do turn, they have an irritating tendency to dislodge only that which already is considered common knowledge.
The requests, submitted on behalf of AVN Online by Chicago First Amendment attorney J.D. Obenberger, sought a copy of the June 2004 report of the attorney general to the House Judiciary Committee or the Congress pursuant to a section of the PROTECT Act that required the DOJ to enumerate its inspections of records under Title 18 U.S.C. §2257, the federal labeling and records-keeping act.
The PROTECT (Prosecuting Remedies and Tools against the Exploitation of Children Today) Act was signed into law in April 2003. In addition to establishing the nationwide Amber Alert system for missing children, the law stiffened penalties for pedophiles and removed judges’ sentencing latitude in cases involving crimes against children. Furthermore, Section 511 of the act mandated the attorney general submit to Congress within one year an accounting of the number of times since 1993 the DOJ had inspected adult content producers’ records and the number of violations prosecuted as a result of the inspections. The report, dated April 30, 2004, barely squeaked across the finish line in time to comply with the law.
According to Obenberger, the report’s existence came to the attention of industry attorneys in June 2004. On Aug. 11 and Sept. 3, 2004, Obenberger submitted written FOIA requests for the report to the DOJ. Under federal law, the department had 10 days to respond, which it did by requesting an additional 10 days to review the request as allowed under the FOI law. Obenberger said he received a second response from the department on the 20th day, stating it would need still more time to process the request. On Sept. 9, 2005, after repeated calls to the DOJ’s Office of Information and Privacy, Obenberger received the department’s answer: a nearly illegible photocopy of a photocopy of the brief but eloquent report.
By the time Obenberger received the document, it already had been entered as plaintiffs’ evidence in the case Free Speech Coalition vs. Gonzales, in which the adult industry’s trade association is challenging the regulations for enforcing §2257 on behalf of its members. The lawsuit was filed in Denver in June. Obenberger speculated that the August appearance of the report among the court documents might have prompted the DOJ to release the information to AVN Online before the magazine called someone’s hand for stalling.
“We have located the report you requested and have determined that it is appropriate for release without excision and a copy is enclosed,” read the cover letter signed by Melanie Ann Pustay, deputy director of the information and privacy office. “We apologize for the quality of certain pages; however, no better copies could be obtained.”
The report, consisting of little more than one page of copy and a cover sheet, documents five cases prosecuted by the DOJ between 1993 and 2002 in which §2257 records played a role. Interestingly, none of the cases arose from a records inspection.
“The Department of Justice has conducted no records inspections of producers of actual sexually explicit material pursuant to 18 U.S.C. §2257 since 1993 and, therefore, has uncovered no section 2257 violations as a result of inspections during that time,” the report notes. “The Department has, however, prosecuted five violations of section 2257 between 1993 and 2004 that were discovered by investigative means other than records inspection.”
The chart that composes the majority of the report notes that two of the cases (against a husband and wife) were in the Northern District of New York in 2002, one was in the District of Idaho in 1997, and two were in the Eastern District of Texas in 1993 and 1998. All of the defendants were accused of creating child pornography; four of them pleaded guilty to one §2257 violation each, and the fifth landed a 10-year prison term after pleading guilty to producing child pornography.
“It looks as if [DOJ prosecutors] were using [a §2257 charge] to reduce a plea in cases where they had a flaky child porn case,” Obenberger said.
Repeated calls to the DOJ’s Office of Information and Privacy were not returned.
